Excerpt:.....and it should be declared that he was effectively retired under rule 244 (2) of the rajasthan service rules, 2. the writ application has been contested by the state of rajasthan. the public service commission was not satisfied with the proposed punishment and advised the government that a fresh notice should be given to the petitioner as he deserved to be dismissed from service. it is not denied by the respondent that the petitioner did not apply for leave after he was served with the order of compulsory retirement the petitioner having retired effectively from the afternoon of the 18th september, 1961, the order of his retirement could not be held in abeyance by another order dated 3rd october, 1961. the petitioner's case is, that the government was well aware of the fact that he..........were retired compulsorily from the government service under rule 244 (2) of the rajasthan service rules by order of the government. it was noted in the same order that they were permitted to proceed on privilege leave to the extent due, not exceeding 120 days, from the 18th of september, 1961. it was further ordered that their retirement would be effective from the date of expiry of such leave if availed of by them, otherwise with effect from 18th september. 1961.the petitioner's case is, that he did not avail of the earned leave which stood to his credit and, therefore, his retirement, according to the said order, became effective from the afternoon of the 18th september, 1961. his grievance is, that after his retirement, the government issued another order dated 3rd october......

Judgment:

D.S. Dave, C.J.

1. This is a writ application under Article 226 of the Constitution of India by Shri Nawal Kishore Dubey, who was holding the post of Deputy Superintendent of Police in the State of Rajasthan till 11th September, 1901. On the 11th September, 1961 four Deputy Superintendents of Police including the petitioner were retired compulsorily from the government service under Rule 244 (2) of the Rajasthan Service Rules by order of the Government. It was noted in the same order that they were permitted to proceed on privilege leave to the extent due, not exceeding 120 days, from the 18th of September, 1961. It was further ordered that their retirement would be effective from the date of expiry of such leave if availed of by them, otherwise with effect from 18th September. 1961.

The petitioner's case is, that he did not avail of the earned leave which stood to his credit and, therefore, his retirement, according to the said order, became effective from the afternoon of the 18th September, 1961. His grievance is, that after his retirement, the Government issued another order dated 3rd October. 1961 (Ex. 7) whereby the order regarding his compulsory retirement was held in abeyance till the decision of the departmental enquiry which was pending against him before his retirement It is stated by him that while he was in service, he was served with a notice dated 24-5-61 by the Inspector General of Police, Rajasthan and he was also supplied with a statement of allegations together with charges on which departmental enquiry was proposed to be held under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. He was required to submit his explanation within fifteen days. He submitted his explanation within time. On 25-7-61 he was suspended in connection with the departmental enquiry which was initiated against him.

According to him, his suspension order as also the departmental enquiry should be taken to have been terminated when he was compulsorily retired from government service and after his retirement had become effective, no power was left with the government to hold the order of his retirement in abeyance and recommence the enquiry against him. He, therefore present ed a writ application in this Court on 13-5-63 and it was prayed by him that a writ of prohibition be issued against the State of Rajas-than restraining it from proceeding further with the departmental enquiry. It was also prayed that the notices dated 31-10-62 and 26-4-63, which were issued against him to show cause why he should not be punished with dismissal, should be quashed.

While the petitioner's writ application was pending in this Court, the Government passed another order dated 30-6-64 (Ex. S-4) whereby he was dismissed from service. The petitioner then moved an application to amend his writ petition and after the permission was granted, he filed an amended writ application. In the amended petition, it has been prayed by him that the order of dismissal dated 30-6-64 should be quashed and it should be declared that he was effectively retired under Rule 244 (2) of the Rajasthan Service Rules,

2. The writ application has been contested by the State of Rajasthan. It is admitted that the petitioner was retired compusorily under Rule 244 (2) of the Rajasthan Service Rules by the order dated 11th September, 1961, but it is said that the said order was issued by mistake, as it escaped the notice of the government that the petitioner was already under suspension and departmental enquiry was going on against him. It is pointed out that the order of his compulsory retirement under Rule 244 (2) could not be issued on account of the provisions of Rule 56 (b) of the Rajasthan Services Rules. When this mistake was realised, the Government passed another order dated 3-10-61 holding the order of 11th September. 1961 in abeyance till further orders,

Thereafter the enquiry officer proceeded to hold an enquiry which was pending against the petitioner Since certain charges were found proved against him, he was served with another notice and was called upon to show cause why he should not be demoted to the post of Inspector of Police. This notice was dated 3040-62. The petitioner filed a reply to this notice and thereafter the papers were sent to the Public Service Commission for their advice. The Public Service Commission was not satisfied with the proposed punishment and advised the government that a fresh notice should be given to the petitioner as he deserved to be dismissed from service. In pursuance of this recommendation, a fresh notice was served upon the petitioner on 26-4-68 to show cause why he should not be dismissed from service. The petitioner submitted his reply on 26-6-63. It is admitted that the petitioner was then dismissed from service on 30-6-64.

It is asserted on behalf of the respondent that since the petitioner was retired compulorily under Rule 244 (2) of the Rajasthan Service Rules by mistake, the Government had & right to hold that order in abeyance and proceed with the departmental enquiry against the petitioner. It is further asserted that even though the petitioner was first served with a notice to show cause against his demotion, it was still open to the Government to issue another notice in view of the recommendation of the Public Service Commission to show cause against his dismissal. It is urged by the learned Deputy Government Advocate that the order of dismissal dated 30-6-64 passed against the petitioner is quite valid and, therefore, the writ application should be dismissed with costs.

3. The questions, which arise for our determination, are (1) whether the order retiring the petitioner compulsorily under Rule 244 (2) of the Rajasthan Service Rules could not have been passed on account of the provisions of Rule 56 (b) and (2) whether it was open to the government to keep in abeyance its order dated 11-9-61 after the petitioner's retirement had become effective on 18-9-61 and to re-commence the enquiry and pass an order of dismissal.

4. Now, it would be proper to take up the first question first. In order to appreciate the arguments which have been advanced on either side, Rules 56 and 244 of the Rajasthan Service Rules as they stood in 1961, may be reproduced here. They were as follows:

'Rule 56 (a) Except as otherwise provided, the date of compulsory retirement of a government servant is the date on which he attains the age of 55 years. Me may be retained in service after the date of compulsory retirement, with the sanction of the Government, on public grounds, which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.

(b) A Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement, but shall be retained in service until the enquiry into the charge is concluded and a final order passed thereon by competent authority.'

'244 (1) x x x(2) Government retains an absolute right toretire any government servant after he hascompleted 25 years qualifying service withoutgiving any reasons and no claim to specialcompensation on this account will be entertained. This right will not be exercised except whenit is in public interest to dispense with furtherservice of a Government servant.'

5. It is urged by learned counsel for the petitioner that Rule 56 (b) would apply only to those cases in which a government servant is permitted to retire or is required to retire on attaining the age of superannuation which was 55 years at that time. According to him, it would not apply where a government servant is retired compulsorily under Rule 244(2). It is contended by the learned Deputy Government Advocate, on the other hand, that government servant under suspension on a charge of misconduct could not be required to retire compulsorily under Rule 244 (2) and that Rule 50 (b) applied as much to a case under Rule 244 (2) as to a case covered by Rule 56 (a).

6. Learned counsel on either side have nol referred to any decided case of this Court or of any other High Court or the Supreme Court which may have a direct bearing on this point. We have, therefore, to interpret Rule 56(b) untrammelled by any precedent. We have given due consideration to the arguments raised by the learned Deputy Government Advocate, hut we. think that Rule 56(b), as framed, on strict interpretation, applied only to retirement of a Government servant attaining the age of superannuation and it does not seem to have been laid down to cover a case arising under Rule 244 (2) Normally, it is desirable not to retire a Government servant compulsorily even under Rule 244 (2) if he is under suspension on a charge of misconduct and an enquiry is pending against him but, if such an order is passed and is not tainted with malice, it cannot be said that it would he illegal having been hit by the provisions of Rule 56 (b) Rule 56 (b) lays down that a Government servant under suspension on a charge of misconduct should not be permitted to retire on reaching the date of compulsory retirement. This would mean that if a certain Government servant reaches the dale of compulsory retirement, which can only be the dale on which he attains the age of superannuation, lie should not be permitted to retire, if he is under an order of suspension and a departmental inquiry is proceeding against him.

7. Under Rule 56 (b) he should he retain ed in service until the enquiry into the charge is concluded and a final order is passed by a competent authority Similarly, it is laid down that a government servant under suspension on a charge of misconduct should not he required to retire on reaching the date of compulsory retirement, but he should be retained in service until the inquiry into the charge is concluded and a final order is passed by the competent authority The words 'on reaching the date of compulsory retirement' appear ing in this sub-rule arc very significant and they apply as much to permission to retire as to an order of the government requiring the government servant to retire. A government servant can reach the date of compulsory retirement only when he attains the age of superannuation which was 55 years on the relevant date

It is noteworthy that under Rule 244 (2) a government servant does not automatically reach any dale of compulsory retirement The language of Rule 244 (2). as it stood at the relevant time laid down that the government retained an absolute right to retire a government servant after he had completed 25 years qualifying service, without giving any reasons It was not incumbent for the government to retire a government servant under this Rule on the date he completed 25 years qualifying service. In other words, the government could exercise its powers given by that Rule at any time, after the government servant had completed 25 years' qualifying service. The contingency of a government servant reaching the date ot compulsory retirement under this Rule could not therefore arise in any case. Thus, to our mind, Rule 56 (b) did not impose any bar against the government if it decided to retire a government servant under Rule 244(2) even if an enquiry was pending against him.

8. It may be further observed that a government servant can be demoted, removed or dismissed from service only if he continues to be in the employ of the Government. Before a government servant is punished with demotion, removal or dismissal, it becomes necessary to hold an enquiry against him under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The term 'government servant as defined in the said Rules, means a person who is a member of the service or who holds a civil post under the Government of Rajasthan. A person who retires or who is made to retire from service no longer remains a member of the service or the holder of a civil post under the Government. Once the order of his retirement becomes effective, he cannot, thereafter, be demoted, removed or dismissed from service. In fact, the question of his demotion, removal or dismissal does nol arise al all, after his retirement.

9. Now, in the present case, the order of the petitioner's compulsory retirement became effective from the afternoon of the 18th September, 1961. This position is not contested on behalf of the respondent, because it was expressly noted in the order of the petitioner's retirement that the retirement would become effective from the afternoon of the 18th September, 1961 if the leave standing to his credit was not availed of by that time. It is not denied by the respondent that the petitioner did not apply for leave after he was served with the order of compulsory retirement The petitioner having retired effectively from the afternoon of the 18th September, 1961, the order of his retirement could not be held in abeyance by another order dated 3rd October, 1961.

The petitioner's case is, that the government was well aware of the fact that he was under suspension and that a departmental enquiry was proceeding against him. It is urged on his behalf that, in fact it was on account of the background of the enquiry held against him. that the government proceeded to retire him compulsorily under Rule 244 (2). According to him, it was not correct to say that this order of compulsory retirement was passed by mistake and in ignorance of his being under suspension We are also unable to understand how il could escape the notice of the authorities that the petitioner was under suspension and that an enquiry was proceeding against him when an order under Rule 244 (2) was passed against him

It appears that later on, it dawned upon somebody that the petitioner ought to have been punished severely and, therefore, that order was held in abeyance. We are again unable to understand how the order of compulsory retirement could be held in abeyance after it had become effective. It could only be set aside if such a power still rested with the Government. But, we have not been referred to any rule which empowered the government to set aside that order to the detriment of the petitioner. It would have been a different case if that order were set aside at the request of the petitioner and if the Government were satisfied that the order was passed wrongly. In our view the order dated 3rd October, 1961 (Ex. 7) was, therefore, not valid and there is no alternative for us but to quash it. Once that order is quashed, the subsequent proceedings taken against the petitioner by recommencing the enquiry and the order of dismissal passed after the conclusion of the enquiry cannot be allowed to stand.

10. Before parting with the case, it may be observed that it was also urged by learned counsel for the petitioner that the enquiry held against his client after 3rd October, 1961 suffered from several irregularities and that the order of dismissal could not be upheld on those grounds also. We consider it unnecessary to enter into that argument since the petitioner succeeds on another ground.

11. The writ application is, therefore, allowed, the orders of the Government dated 3rd October, 1961 (Ex. 7) and 30th June, 1964 (Ex. S-4) relating to the petitioner's dismissal are hereby quashed and it is declared that the petitioner was effectively retired under Rule 244 (2) of the Rajasthan Service Rules from the afternoon of the 18th September, 1961. In the circumstances of the case, the parties are left to bear their own costs.